The U.S. District Court for the Eastern District of Arkansas (Judge Susan Webber Wright) denied a FLSA 216(b) motion for conditional certification by seven former employees of a strip club in Jacksonville, Arkansas who filed a putative class and collective action against the club’s owners and managers alleging that they had been improperly classified as independent contractors in violation of the Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA).  Collins v. Barney’s Barn, Inc., 2013 U.S. Dist. LEXIS 54955 (E.D. Ark. Apr. 17, 2013).

The plaintiffs, former employees of Peaches Gentleman’s Club, consisted of four dancers, one of which was also a non-lead bartender and a waitress, one bouncer, one assistant manager/disc jockey, and one lead bartender.  Three of the four dancers (collectively, the “Dancer Plaintiffs”) alleged that defendants had misclassified them as zero-wage independent contractors.  All of the plaintiffs, including the Dancer Plaintiffs, alleged that defendants had denied them a minimum hourly wage and overtime compensation.  The Dancer Plaintiffs also alleged tip-pooling violations of the FLSA.

The District Court denied plaintiffs’ motion for conditional certification because they failed to show that they were similarly situated to each other or to putative class members.  The evidence revealed that the plaintiffs had been subject to different policies and practices resulting from varying job titles and duties.  Moreover, the plaintiffs failed to present specific evidence of the existence of other similarly situated employees and potential class members who would be willing to “opt-in” to the collective action.  Plaintiffs provided nothing more than conclusory statements regarding the existence of potentially similarly situated victims of common policy or plan.

The District Court found that dividing the plaintiffs into three different subclasses, as suggested by plaintiffs, would not lead to efficient adjudication and that significant dissimilarities among class members would remain.  For example, one of the named plaintiffs had worked in multiple capacities as a dancer, waitress, and bartender and received her pay under different pay systems, i.e., flat fees and tips.  Additionally, the District Court rejected the conditional certification of subclasses because some of the dancers were required to share tips with disc jockeys and bouncers, which could create future conflicts between the proposed classes.  The court suggested that it would consider certification of a class composed solely of similarly situated current and former exotic dancers because they may have been improperly classified as zero-wage independent contractors in violation of the FLSA.  The court, nevertheless, declined to conditionally certify the proposed class of dancers because they had failed to demonstrate the existence of similarly-situated employees who desired to join the suit.

The District Court, in denying the motion for equitable tolling of the two-year statute of limitations under the FLSA, found that the plaintiffs’ failed to demonstrate the existence of exceptional circumstances to warrant application of the doctrine.

Notwithstanding the lenient standard employed by federal courts when conditionally certifying a class under the FLSA, this case serves as a textbook example on how employers can still defeat conditional certification of a FLSA collective by emphasizing the dissimilarity of putative class members.